C. Legislative History as Evidence of Congressional Intent
1. The centrality of committee-produced legislative history
The following Figure indicates how our respondents would rank different types of legislative history, on a scale of very reliable, somewhat reliable, or not reliable:
258. For pronouncements on the particular reliability of sponsor statements, see Corley v. United States, 556 U.S. 303, 318 (2009) ("[A] sponsor's statement to the full Senate car- ies considerable weight .... "); Pub. Emps. Ret. Sys. v. Betts, 492 U.S. 158, 190 (1989) (Marshall, J., dissenting) (quoting Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S.
548, 564 (1976)); and Cnty. of Washington v. Gunther, 452 U.S. 161, 187 n.2 (1981) (Rehnquist, J., dissenting) (quoting Algonquin SNG, 426 U.S. at 564). Cf Bankamerica Corp. v. United States, 462 U.S. 122, 145 (1983) (White, J., dissenting) (construing text "[i]n light of the statements of the men most familiar with the circumstances surrounding the addi- tion" of that text). For statements about the reliability of committee and conference reports, see Garcia v. United States, 469 U.S. 70, 76 (1984) (remarking that "Committee Reports are 'more authoritative' than comments from the floor" (quoting United States v. O'Brien, 391 U.S. 367, 385 (1968))); Simpson v. United States, 435 U.S. 6, 17 (1978) (Rehnquist, J., dis- senting) ("The report of a joint conference committee of both Houses of Congress, for ex- ample, or the report of a Senate or a House committee, is accorded a good deal more weight than the remarks even of the sponsor of a particular portion of a bill on the floor of the chamber."); and United States v. UAW, 352 U.S. 567, 585-86 (1957). For statements on the lesser reliability of opponents' statements, see Bryan v. United States, 524 U.S. 184, 196 (1998); and Shell Oil Co. v. Iowa Dep't of Revenue, 488 U.S. 19, 29 (1988). For statements that the Court gives little weight to subsequent legislative history, see Barber v. Thomas, 130 S. Ct. 2499, 2507 (2010) ("And whatever interpretive force one attaches to legislative histo- ry, the Court normally gives little weight to statements, such as those of the individual legis- lators, made after the bill in question has become law."); Massachusetts v. EPA, 549 U.S.
497, 530 n.27 (2007); and Heintz v. Jenkins, 514 U.S. 291, 298 (1995). See also Eskridge, supra note 88, at 636 (arguing that the Court applies a de facto hierarchy of legislative histo- ry).
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Empirical Survey of 137 Congressional Staffers 2011-2012:
Reliability of Different Types of Legislative History Conference Reports (71% VR; 22%ISR; 4% NR) ]* Committee Reports in Support
j:(69% VR; 28% SR; 2% NR) Committee Reports in Opposition (29% VR; 48% SRI 19% NR)
1111
Hearing Transcripts (20A VR; 50o SR; 27% NR)IFloor
Statements in Support (14% VR; 61% SR; 24% NR)I___
Floor Statements by Party Leadership (12% VR; 53% SR; 34% NR)Z
Floor Statements in Opposition (7% VR; 45%d SR; 47% NR)III II I I I
0.0 0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9
Fraction of Respondents Sources: Q6la-g.
Bar charts reflect percentage of respondents answering "Very Reliable." Percent- ages may not add up to 100% because of rounding and respondents indicating "Don't know/abstain."
VR: Percentage of respondents indicating "Very Reliable."
SR: Percentage of respondents indicating "Somewhat Reliable."
NR: Percentage of respondents indicating "Not Reliable."
By far, the types of legislative history viewed as most reliable were com- mittee reports and conference reports in support of the statute.25 9 Fifty-nine percent of our respondents singled out both types of reports as very reliable sources for legislators to consider, and 80% mentioned at least one.2 60 Floor statements by members opposed to the statute were viewed as least reliable.2 6 t
259. Q61d, f, Q62d, f.
260. Q61 d, f. When asked whether these types of legislative history were also very reli- able for courts or agencies (and not just legislators, as the previous question had inquired), those numbers were 57% (one type of report) and 77% (both types of reports), respectively.
261. Q61b; Q62b.
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Our respondents were especially reluctant to endorse legislative history created outside of the committee system, by party leaders, or otherwise. Indeed, floor statements by party leadership in support of the statute were viewed as less re- liable than floor statements in support by other members.262
These findings are of particular interest because they further drive home two prominent themes that we already have introduced: the relevance of com- mittees to the drafting process and the extent to which different kinds of legis- lative processes affect how legislation is put together. With respect to the cen- trality of committees, fourteen (10%) of our respondents volunteered that floor statements by the committee chair or ranking member, or the legislation's sponsor, should be viewed as more reliable than other types of floor state- ments.2 63 More generally, most respondents emphasized the reliability of the committee report over other pieces of legislative history.
It was our impression, but one that we cannot corroborate quantitatively, that the reason our respondents viewed committee and conference reports (as well as colloquies between committee chairpersons and ranking members of opposite parties, as discussed below) as particularly reliable is that they are viewed as evidence of a shared consensus. That is, unlike floor statements, which convey only a single member's opinion and which sometimes slip into the record unnoticed, these group-produced pieces of legislative history often convey bipartisan, multimember understandings, and disagreeing members typ- ically will have the opportunity to respond to them. These reports also seem likely to have agencies and other members as at least part of their intended au- diences-that is, they are more likely to have internal institutional and imple- mentation-related functions. Group reports also are particularly unlikely to be focused on the reelection prospects of a single member.
There is an additional possible explanation, one relating to a potential bias among our respondents. It may be unsurprising that our respondents, as com- mittee staff themselves, took a lesser view of legislation produced by party leaders outside of the committee process. Moreover, while political scientists have documented the concerns that our respondents raised about the lack of ex- pertise and deliberation associated with legislation outside of committee,264 scholars also have made arguments from the other side that our study did not capture. In particular, the notion that committee members use their expertise and gatekeeping power to pass legislation of interest only to a minority of members has been one argument for concentrating more power in the hands of leadership.2 65
262. Q61a, c; Q62a, c.
263. Q61; Q64.
264. See generally SINCLAIR, supra note 48, at 266-68.
265. See generally Kenneth A. Shepsle & Barry R. Weingast, The Institutional Founda- tions of Committee Power, 81 AM. POL. Sci. REv. 85 (1987); Barry R. Weingast & William
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2. Unorthodox lawmaking's relevance: distinguishing party leader,